Captives Not POWs, U.S. Contends

The Pentagon contends that the men taken into custody in Afghanistan and transferred to the makeshift prison at Guantanamo Bay Naval Base in Cuba are not “prisoners of war” as defined by the third Geneva Convention, a 1949 international gathering of nations to agree on the rules of war. Instead, they are “unlawful combatants” who lack the specifically listed rights given POWs.

POWs, for example, must be held in conditions that are “as favorable” as those of soldiers; are required to divulge only their name, rank, serial number and date of birth; cannot be tried simply for taking up arms against an enemy during wartime and must be given access to Red Cross representatives. Denying POWs a fair trial is itself considered a war crime.

Washington’s reasoning goes like this: The third Geneva Convention refers to a 1907 standard, known as Hague 4. Article 1 of the annex to Hague 4 sets forth what appears to be a clear standard. It states that to qualify as POWs, combatants must:

* Follow a chain of command.

* Have a “fixed distinctive emblem recognizable at a distance.”

* “Carry arms openly.”

* Abide by the international laws of war.

The pro-Taliban fighters would appear not to qualify because they clearly did not wear any insignia, and the closest thing to a uniform was the black turbans that many wore.

But Amnesty International officials note that the next paragraph, Article 2, contains an exception for “the inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops.” This, they argue, could be construed to include the Taliban militia.

“Rumsfeld is wrong on at least two fronts,” said Curt Goering, deputy executive director of Amnesty International in New York.

First, he said, the Geneva Convention rules require that if there is a dispute about the prisoners’ status, a “competent tribunal” needs to declare anyone a noncombatant or else they must be presumed to be POWs.

Second, the Guantanamo detainees live in 8-foot-square caged cells, with wooden planked roofing but only wire-fence sides. That, Goering said, clearly violates a convention requirement that prisoners be “protected from the elements.”

Asked about that, Defense Secretary Donald H. Rumsfeld said Tuesday, “To be in an 8-by-8 cell in beautiful, sunny Guantanamo Bay, Cuba, is not inhumane treatment.”